Fanula Mufovska and Secretary, Department of Social Services
[2015] AATA 283
•30 April 2015
[2015] AATA 283
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3274
Re
Fanula Mufovska
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member Date 30 April 2015 Place Sydney The Tribunal affirms the decision under review.
..........................[sgd]........................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether Applicant qualifies for unlimited portability – whether Applicant has a severe impairment – whether Applicant has impairment rating of 20 points or more under single Impairment Table - decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 94, 1218AAA
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander, Member
30 April 2015
BACKGROUND
Ms Mufovska has been receiving disability support pension (DSP) on and off since 1997. Since October 2008 she has had her DSP suspended three times on the basis that she had been overseas for longer than 13 weeks. Her DSP was reinstated each time she returned to Australia.
On 7 March 2013 Ms Mufovska requested that Centrelink review her entitlement to indefinite portability for her DSP because she wished to leave Australia for more than six weeks.
Ms Mufovska was not granted indefinite portability for her DSP by Centrelink on the basis that she did not suffer from a severe impairment as defined in section 94(3B) of the Social Security Act 1991 (the Act).
The decision was affirmed on internal review, and subsequently by the Social Security Appeals Tribunal (SSAT).
In this proceeding, Ms Mufovska seeks review of the decision of the SSAT. At the hearing she was unrepresented but was able to give oral evidence.
ISSUES
The issue under review is whether Ms Mufovska qualifies for unlimited portability of her DSP under section 1218AAA of the Act.
In determining whether Ms Mufovska, qualifies for unlimited portability, the following considerations are relevant:
(a)Whether Ms Mufovska has a severe impairment within the meaning of section 94(3B) of the Act;
(b)if so, whether Ms Mufovska will have that severe impairment for the next five years (section 1218AAA(1)(c) of the Act); and
(c)if Ms Mufovska were in Australia, whether the severe impairment would prevent her from performing any work independently of a program of support within the next five years (section 1218AAA(1)(d) of the Act)
In the absence of any express temporal limitation in the Act or the Social Security (Administration) Act 1999, the Tribunal is entitled to make its decision on Ms Mufovska’s eligibility for unlimited portability as at the date of the decision taking into account all material that is relevant and available to it: see Re Morton and Secretary, Department of Social Services [2014] AATA 949 at [48].
Section 94(3B) of the Act states that “a person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table”. The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
There is no dispute that Ms Mufovska suffers from several medical conditions that cause various degrees of functional impairment. After consideration of her oral evidence and on review of all the relevant documents, I am satisfied that Ms Mufovska suffers from three medical conditions that may cause severe functional impairment, being those conditions which impact on her spinal function, digestive function and mental health function.
Therefore, the primary issue in this matter is whether an impairment rating of 20 points or more can be assigned to any of these three conditions.
MS MUFOVSKA’S DIGESTIVE CONDITION
In her oral evidence, Ms Mufovska indicated that a severe chronic cough is one of her most troublesome symptoms. The cough has been present for several years and its cause has been largely unexplained.
The cough varies in frequency and severity. At times it can be so severe that it causes her to vomit or faint and sometimes results in breathing difficulty. The cough contributes to her back pain, urinary incontinence and is socially isolating because people are disturbed by the frequent coughing.
During the hearing Ms Mufovska suffered frequent bouts of severe cough which caused some difficulty when she was giving evidence.
In a letter to Ms Mufovska’s general practitioner (GP) dated 10 May 2013, Associate Professor Ing , Respiratory Physician, notes that following:
Her investigation shows that she has significant reflux with nuclear medicine reflux scan showing that she has moderate reflux to the upper thoracic oesophagus … with possible aspiration into the left lung. … laryngeal examination reveals grade 3 reflux changes.
…
My feeling is that she should be on medications of Motilium and Nexium consistently for the next six weeks and if there is little improvement then consideration of fundoplication to treat her cough would be appropriate.
In a letter to Ms Mufovska’s GP dated 17 June 2014, Dr Crawford, Consultant Respiratory Physician, notes the following:
In summary, this woman continues to have a quite disabling paroxysmal cough which indeed has afflicted her since at least 2005. Her symptoms are in fact very similar to when I initially saw her in 2005 and subsequently. The available evidence suggests that the most likely cause of her intractable cough is ongoing gastro-oesophageal reflux. This appears to be resistant to the use of both PPI medication and prokinetic agents such as Motilium and Maxolon. I certainly think it would be reasonable for her to consider a fundoplication procedure and I presume this is why she is seeing Dr Falk.
In a letter to Associate Professor Ing dated 30 April 2014, Associate Professor Falk, Upper Gastrointestinal Surgeon, notes the following:
I reviewed this lady with the results of all her tests. It is highly likely that she has reflux laryngeal symptoms and that surgery, as PPI has been ineffective, may well help her…Once laryngeal disorder has been eliminated the positive diagnosis of reflux cough can be made and we can move forwards towards surgery. She will have several tests including an impedance study and if I may review her with those results we can move forward.
At the hearing Ms Mufovska explained that she had the various tests but did not pursue any further follow–up and did not see Professor Falk again.
Her explanation for the failure of follow-up was somewhat confused and in my view she was unable to provide a satisfactory reason for not considering an operation other than an assertion that she did not wish to have an operation because, at the initial consultation, Professor Falk was unable to guarantee that an operation would cure her cough.
There is no doubt that Ms Mufovska suffers significant functional impairment because of her intractable paroxysmal cough. The documentary evidence clearly points to the conclusion that her cough is due to severe gastro-oesophageal reflux.
The Determination stipulates that that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).
For the purposes of paragraph 6(3)(a) a condition is permanent if the condition is:
·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a));
·fully treated (paragraph 6(4)(b)); and
·fully stabilised (paragraph 6(4)(c)).
On the evidence before the Tribunal, I am not satisfied that Ms Mufovska’s condition of gastro-oesophageal reflux has been fully treated and stabilised and therefore an impairment rating cannot be assigned.
MS MUFOVSKA’S SPINAL CONDITION
There is no dispute that Ms Mufovska suffers a degenerative spine condition involving the cervical and lumbar spine and that the condition is permanent within the meaning of the Act.
In the two Job Capacity Assessment (JCA) reports submitted on 20 August 2013 and 3 November 2014 the assessors recommended an impairment rating of 10 points under Table 4 - Spinal Function.
On 5 June 2015, the SSAT reviewed the evidence and concluded that Ms Mufovska had only minor difficulties with her spine and assigned an impairment rating of five points under Table 4.
In my view, the evidence before the Tribunal does not clearly establish whether the correct impairment rating under Table 4 is either five or 10 points.
I am satisfied, however, that the evidence does not support a conclusion that the impairment rating under Table 4 is not 20 points or more.
This means that, in respect of her spinal condition, Ms Mufovska does not have a severe impairment within the meaning of the Act.
MS MUFOVSKA’S MENTAL HEALTH CONDITION
There is no dispute that Ms Mufovska suffers a mental health condition and that the condition is permanent within the meaning of the Act.
The Respondent contends that Ms Mufovska is entitled to an impairment rating of no more than 10 points under Table 5 of the Determination. The Respondent relies on the findings of the assessors in the JCA reports of 20 August 2013 and 3 November 2014.
The SSAT also concluded that Ms Mufovska’s functional impairment due to her mental health condition did not warrant an impairment rating of more than 10 points.
At the hearing Ms Mufovska claimed that she had been under the care of a Dr Samad, a psychiatrist, from 1997 until his retirement. Then after seeing a counsellor/psychologist for several months, Ms Mufovksa began seeing Dr Sringeri.
This claim is not supported by the documentary evidence.
The Tribunal was provided with copies of nine letters Dr Samad had sent to Ms Mufovska’s GP covering a period from September 1997 to September 2003.
During this time Dr Samad treated Ms Mufovska for chronic major depressive reaction with adjustment disorder, grief reaction and chronic alcohol dependency.
Dr Samad retired in September 2003 and in a letter dated 17 September 2003, he noted that the last time he saw Ms Mufovska was on 11 August 2003.
In a letter dated 1 August 2013, Dr Sringeri states that Ms Mufovska had been seeing him since 7 October 2010 for the management of post-traumatic stress disorder (PTSD) and major depressive disorder.
Initially she was treated with antidepressants with partial response, but responded better when an antipsychotic medication was added.
Dr Sringeri concluded that Ms Mufovska suffers from PTSD and “probably a psychotic disorder not otherwise specified” and required long term treatment with a combination of antidepressant and antipsychotic medication.
In a letter dated 27 July 2014, Dr Sringeri provided an assessment of the functional impact of Ms Mufovska’s mental health condition with reference to the descriptors outlined in Table 5 of the Determination. Dr Sringeri noted that the assessment was based on information provided by Ms Mufovska
CONSIDERATION
The Introduction to Table 5 (the Introduction) states that self-report of symptoms is insufficient, that there must be corroborating evidence and that evidence from a range of sources should be considered.
The Introduction also identifies relevant issues which should be considered when determining which rating applies including:
·signs and symptoms of mental health impairment may vary over time;
·mental health conditions are episodic or fluctuate; and
·a person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects.
Table 5 provides the following descriptors for the assessment of functional impact on activities involving mental health function:
(a) self care and independent living;
(b) social/recreational activities and travel;
(c) interpersonal relationships;
(d) concentration and task completion;
(e) behaviour, planning and decision-making;
(f) work/training capacity.
There are five point allocation categories (zero, five, 10, 20 and 30 points). In each category there are one or two examples provided for each of the six descriptors in order to provide some guidance with respect to severity of functional impairment.
Points can be assigned if at least four of the six descriptors in the relevant category are satisfied.
In my view, these examples should only be used as guides and should not be seen as exhaustive, particularly as the examples in the various categories tend to ask similar questions which may require a subjective and/or objective assessment as to severity which is often likely to be unreliable.
It is agreed that there is moderate functional impact on Ms Mufovska’s activities involving mental health function which means that at least four of the descriptors in the 10 point category have been satisfied.
In order to be successful in this application Ms Mufovska must satisfy four of the six descriptors in the severe or 20 point category.
In respect of descriptor (a) self care and independent living Dr Sringeri stated that Ms Mufovska “lives independently and able to take care of self care. However whenever her depressive symptoms and anxiety symptoms exacerbates (sic) she tends neglect her self care and requires assistance form others”.
At the hearing Ms Mufovska explained that she lives in an apartment with her eldest son who is a project manager/architect. She manages all her personal care but occasionally requires help with back zippers and shoes laces because of her spine condition.
I am satisfied that the evidence indicates that Ms Mufovska has mild to moderate difficulties in respect of self care and independent living in respect of her mental health condition. However I am not satisfied that she has severe difficulties caused by her mental health condition.
In respect of descriptor (b) social/recreational activities and travel Dr Sringeri stated that Ms Mufovska is “socially isolated and has only few friends. She tends avoid attending social functions. She travels to only familiar places and she is anxious to travel to unknown places”.
At the hearing Ms Mufovska confirmed that she has few friends and avoids social events. She attends church every week but does not participate in church activities but explained that her church tends to be rather formal and there are no real social activities.
Ms Mufovska regularly goes grocery shopping on her own at Ramsgate shopping centre. Often she drives her car to the shopping centre.
For shoes, clothes and non-grocery shopping she goes to Rockdale Plaza usually with her daughter-in-law or a friend.
She has travelled to Macedonia on three occasions since 2008. The Sydney-Dubai-Skopje flight takes about 17 hours. Ms Mufovska explained that she does not like flying but her reasons were focussed on her difficulties with back pain and the physical and social consequences of her intractable cough.
In my view the evidence does not support a conclusion that Ms Mufovska has severe difficulties with social/recreational activities and travel because of her mental health condition.
In respect of descriptor (c) interpersonal relationships Dr Sringeri stated that Ms Mufovska “is having significant interpersonal conflicts with her sons and friends”.
At the hearing Ms Mufovska did not provide much useful information on this issue. She did say that she has difficulties with her youngest son who lives with his father.
Ms Mufovska indicated that she likes to go to Macedonia where she stays with her parents and socialises with her cousins. She indicated that she likes to get away to a quieter life without telephones and family tensions but eventually wants to come back home because she misses her family.
I accept that Ms Mufovska has moderate difficulties with interpersonal relationships but in my view there is insufficient evidence to support a conclusion that she has severe difficulties with interpersonal relationships because of her mental health condition.
In respect of descriptor (d) concentration and task completion Dr Sringeri stated Ms Mufovska “reported her concentration in (sic) poor and she was unable to read more than a page at a time. She is also slow her movements, which may be due to side effects of her medications”.
At the hearing Ms Mufovska stated she reads novels and magazines and watches television particularly reality cooking shows. She said she can sit for about 20 minutes and then needs to move around for reasons that were not entirely clear.
I accept that Ms Mufovska has some difficulties with concentration and task completion, but I am not satisfied there is sufficient evidence to conclude that she has severe difficulties caused by her mental health condition.
In respect of descriptor (e) behaviour planning and decision making Dr Sringeri stated that Ms Mufovska “has disturbed behaviour especially when her feelings are invalidated and she felt threatened”.
At the hearing Ms Mufovska did not provide any useful information on this issue. In my view, there is insufficient evidence to make an informed assessment with respect to this descriptor.
In respect of descriptor (f) work/training capacity Dr Sringeri stated that Ms Mufovska is “unable to attend work or any training due to her psychiatric condition”.
I accept that Ms Mufovska is unable to attend work or any training but when I consider the obvious physical and social impact of her intractable cough I have difficulty in attributing her inability to attend work or training solely to her mental health condition.
CONCLUSION
As Ms Mufovska has not satisfied at least four descriptors, she does not qualify for an impairment rating of 20 points which means that she does not have a severe impairment within the meaning of Act.
DECISION
For the reasons set out above Ms Mufovska does not have a severe impairment within the meaning of s 94(3B) of the Act and therefore does not qualify for unlimited portability of her DSP.
The decision under review is affirmed.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member ..................[sgd]...............................................
Associate
Dated 30 April 2015
Date of hearing 2 March 2015 Applicant In person Solicitor for the Respondent Department of Human Services
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